Speak Up and Be Heard

November 22, 2017 § 3 Comments

You older lawyers can take a break from the blog with this post. You, for the most part, don’t suffer from the particular malady I am about to describe. You younger lawyers need to pay heed.

Simply put: if you want the judge to grant your client some kind of relief, you must make sure that the judge hears what both you and your client are saying. I hope I said that loud enough.

Too often I have to urge younger lawyers and their clients to speak up. Projecting your voice so as to be heard in all corners of a courtroom is vastly different from talking on your cellphone. Many courthouses, particularly the older ones, provide no amplification equipment, and acoustic efficiency was not a consideration when designing courtrooms back in days of yore. That’s because lawyers and orators in general knew, understood, and practiced the simple art of projecting their voices.

I met Dean Duncan of the OM Law School recently, and was tempted to ask whether some unamplified speech class could be introduced into the curriculum to impress on lawyers-to-be the importance of making themselves heard. I let it pass and decided to grumble about it here.

One consideration you need to bear in mind is that hearing often does not improve with age. If you look up to the bench and see a chancellor with gray hair, you should assume that he or she spent too much time in college listening to the Rolling Stones through headphones with full volume. Oops, I may be getting too autobiographical here.

Another consideration is that even if you learn to project, it does little good if the judge can’t hear your client. When you prepare your client and key witnesses for trial (and a few of you do that), impress on them the vital importance of speaking up. In the courtroom encourage your witnesses to speak up.

Speak up and be heard.

Should Mississippi Have a Class-Action Rule? Your Comments are Invited

November 7, 2017 § 5 Comments

The MSSC has tasked the Supreme Court Advisory Committee on Civil Rules to study whether Mississippi should adopt a procedural rule allowing class actions. The committee is expected to recommend whether or not to do so, and, if the answer is positive, to propose how such a rule would operate.

The impetus for the referral comes from a motion filed with the court by Attorney Richard T, “Flip” Phillips to adopt Rule 23 of the Federal Rules of Civil Procedure.

To refresh your recollection, when the MRCP was adopted in 1982, Rule 23 was omitted. Up until then, equitable principles allowed consolidation of actions into something resembling class actions in chancery. The MRCP put an end to that, and some used Mississippi’s liberal joinder laws to fashion mass litigation that proved to be nightmarish in implementation. The MSSC and venue legislation put the kibosh on that, and so we are left with no tools for anything resembling class actions.

Both sides on the issue point out that Mississippi is the only state that does not have any form of state-court class action. Virginia allows class action in only extremely limited circumstances. All other states have rules allowing class actions.

The committee is gathering information and hopes to be in a position to make a recommendation by the spring of next year.

What do you think? Should Mississippi have a rule allowing class actions? Your comments are invited and will be shared with the advisory committee.

Butting In

September 25, 2017 § 1 Comment

The Smiths, paternal grandparents of 3-year-old Zach, want to hire you to get custody of of him from his parents, who have been jailed over some meth charges. The Smiths just discovered that the Johnsons, the maternal grandparents, have already filed an action in chancery court to do that very thing, and the case is set for hearing in a week. What to do?

Your first thought is to file a counterclaim for the Smiths, seeking custody. But, after re-reading R13, you realize that counterclaims are between parties, and the Smiths are not parties.

You think then that maybe you should simply file a separate suit and ask the chancellor to consolidate them. That sounds kind of cumbersome, and leaves you and your clients out of the loop as to what is going on in the Johnsons’ original suit unless and until consolidation is granted.

Frustrated and on the verge of tears, wondering why you ever though law school was a good idea in the first place, you pace the floor of your office until an intern says, “Why don’t you file to intervene via Rule 24?” You scoff and dismiss the intern to go get the mail … and then you look at R24.

Voila! Intervention. It’s right there in the MRCP!

The first step in intervention is to file a motion to intervene in the action. The rule requires a “timely application.” The motion must state the grounds for the motion and must be accompanied by a proposed pleading setting forth the claim or defenses for which the intervention is sought.

Any party may intervene in an action:

  1. By right when a statute confers an unconditional right to intervene. So, obviously, the statutory right would be the ground for the motion; or
  2. By right when the applicant claims an interest in the subject matter of the suit and his ability to protect that interest may be impaired, unless existing parties can adequately protect that interest; or
  3. By permission when a statute confers a conditional right to intervene; or
  4. By permission when an applicant’ claim or defense and the main action have common questions of fact or law.

It is within the court’s discretion whether to allow the intervention. The court must consider whether the intervention will unduly delay or prejudice the rights of the original parties.

The Advisory Committee Notes cite authority to the effect that: (1) if one of the criteria for intervention by right are met, and there is a timely application, the court should grant intervention; (2) even if one or more of the criteria for permissive intervention are met, it is discretionary with the court whether to grant it; (3) any application to intervene must be timely, and the note cites the criteria the court must consider to determine timeliness; and (4) the determination of timeliness is in the trial court’s discretion and will not be overturned absent abuse of discretion.

Bottom line: You can’t just leap into the middle of an ongoing lawsuit without following R24.

Dismissal with Bite

August 21, 2017 § Leave a comment

Leesa McCharen was divorced from Judson Allred, III, in 1994. In 2012, Leesa sued Judson for arrearages in medical insurance premiums, private school and private college tuition, and various other claims, totalling more than $530,000. Her two children were 24 and 27 years old, respectively, at the time of her suit.

A year of frenzied litigation ensued, in the course of which Leesa’s claims shrunk to around $136,000. Leesa’s last pleading was filed August 12, 2013. On October 1, 2013, Judson filed a motion to dismiss for failure to join the two daughters as necessary parties, and the court apparently ordered Leesa to join them, although no order was entered. Nothing further happened of record, until …

On June 1, 2015, the chancery clerk issued a R41(d) notice. No response from Leesa. The court dismissed the case by order entered July 9, 2015.

On August 7, 2015, Leesa filed a motion to reinstate the case. There were some fruitless negotiations between attorneys about agreeing to a reinstatement. Nothing else transpired until …

February 25, 2016. On that date, the chancellor held a hearing at which Judson did not appear. Leesa argued that the clerk had mis-styled the case, causing her failure to react. The chancellor reinstated the case. Then, on April 28, 2016, Judson discovered the reinstatement when he was served with discovery requests in the revenant case. He responded with a motion to set aside the order. On May 17, 2016, in a proceeding that the chancellor deemed to be a R60 motion, he dismissed Leesa’s case without prejudice.

In the case of McCharen v. Allred, handed down August 1, 2017, the COA affirmed. Judge Fair wrote for the unanimous court:

¶8. The trial court has the inherent authority to dismiss an action for lack of prosecution. Wallace v. Jones, 572 So. 2d 371, 375 (Miss. 1990). We apply a substantial evidence/manifest error standard of review to the trial court’s grant or denial of a motion to dismiss pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. Ill. Cent. R.R. v. Moore, 994 So. 2d 723, 733 (¶30) (Miss. 2008). Also, we will not reverse the trial court’s denial of relief from judgment pursuant to Rule 60 of the Mississippi Rules of Civil Procedure unless the trial court has abused its discretion. Harrison v. McMillan, 828 So. 2d 756, 773 (¶51) (Miss. 2002).

DISCUSSION

¶9. Mississippi Rule of Civil Procedure 41(d)(1) states that the “case will be dismissed by the court for want of prosecution unless within thirty days following said mailing [notifying the attorneys the case will be dismissed], action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case.” Leesa left her case dormant for almost two years. As a result, the clerk filed a motion to dismiss on June 1, 2015. Leesa did nothing. Rule 41(d)(1) also states that “[i]f action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.” M.R.C.P. 41(d)(1) (emphasis added). So on July 9, 2015, the court entered an order to that effect. Twenty-nine days later, Leesa filed a motion to reinstate the case.

¶10. The court originally granted Leesa’s motion, presumably because neither Judson nor his counsel was present at the February 2016 hearing. But after listening to Judson’s argument at the May 2016 hearing, the chancellor found no good cause had been shown and dismissed the case without prejudice under Rule 60(b)(6). In doing so, he addressed Leesa’s claim that she did not recognize the motion to dismiss, styled “Moore v. Crim”:

[Leesa’s argument that the clerk failed] to properly docket [the case] is a red herring. It’s pretty much clearly docketed as this case . . . . (T)he clerk may have reversed the order of the names, but, goodness gracious, the last name “Allred” leads in both reference to plaintiff and defendant, so I don’t think you can possibly make that argument with a straight face.

¶11. On appeal, Leesa abandons her sole argument from the trial court and instead argues that: (1) prior to dismissal, the statute of limitations of Leesa’s claim had expired; and (2) Judson delayed litigation with frivolous motions. It is well established that this Court will not consider issues raised for the first time on appeal. Fowler v. White, 85 So. 3d 287, 293 (¶21) (Miss. 2012). Thus, we decline to address Leesa’s current arguments.

¶12. Rule 60(b)(6) allows a judge the opportunity to relieve a party from a final judgment for any justifiable reason. M.R.C.P. 60(b)(6). After careful review of the record, we find the chancellor acted within his discretion in finding that Leesa failed to show any compelling reason for her delay in prosecution. Accordingly, we affirm the chancellor’s order setting aside the order reinstating the case.

Pretty straightforward, even though the procedural path was convoluted.

When you receive a 41(d) notice, you need to file something of record that will have the effect of advancing the case on the docket. A previous post about what action you need to take is at this link. A letter to the clerk will not do the job. Ignoring it will not make it go away. Some chancellors (I included) take the position that once the case is dismissed, it can not be “reinstated;” the only possibility for revival being a timely-filed R60 motion, which requires that you meet its criteria.

Making the Cap Fit

March 6, 2017 § Leave a comment

Chancery courts can award punitive damages. It doesn’t happen every day, and it doesn’t happen often, but it does happen. When they do award punitive damages, chancery courts are as bound as other courts by MCA 11-1-65(1)(a), which imposes a cap of 2% of the defendant’s net worth for defendants with net worth of $50 million or less.

The case of Moore v. McDonald, handed down February 7, 2017, the appellants argued that the trial court erred in assessing punitive damages in excess of their claimed net worth. We’ve already posted about this case here, here, and here, because there’s a lot to talk about in it. It’s the property-line dispute in which the Moores had violated a previously affirmed judgment setting the parties’ boundary line. The Moores appealed, and Judge Wilson’s opinion will fill you in on the applicable facts:

¶8. The Moores do not dispute that their conduct was malicious such that an award of punitive damages was appropriate. Miss. Code Ann. § 11-1-65(1)(a). Their only objection is that the punitive award exceeds two percent of their net worth in violation of Mississippi Code Annotated section 11-1-65(3). See id. § 11-1-65(3)(a)(vi) (“[N]o award of punitive damages shall exceed . . . [t]wo percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.”). On appeal, they argue that the chancellor was required to accept at face value their own representations of their net worth and cap punitive damages at $1,268. However, in the court below, the Moores failed to raise the issue of the statutory cap on punitive damages. The Moores also failed to introduce any reliable evidence of their net worth. Accordingly, they were not entitled to the benefit of the statutory cap on punitive damages.

¶9. On March 20, 2015, at the conclusion of the hearing on the McDonalds’ contempt petition, the chancellor found that an award of $10,000 in punitive damages would be appropriate. After that hearing, the Moores, who had been proceeding pro se, decided to hire a lawyer. At a hearing on May 8, 2015, the Moores’ recently retained counsel argued that the burden was on the McDonalds to prove the Moores’ net worth before the court could award any amount of punitive damages. Indeed, counsel asserted that “[t]he case law is clear” on this point. At the Moores’ request, the chancellor then continued the case to July 7, 2015, for a hearing on attorneys’ fees and the Moores’ net worth for purposes of assessing punitive damages.

¶10. At the July 7 hearing, counsel for the Moores acknowledged that his argument at the prior hearing was mistaken and that proof of net worth is not necessary to support an award of punitive damages. Counsel then argued that either side could offer such evidence, which the court should then consider in assessing punitive damages. However, in all of the proceedings in the chancery court, the Moores never—at any hearing or in any pleading—mentioned the statutory cap on punitive damages or argued that punitive damages must be capped at two percent of their net worth or any other number. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936). “Moreover, it is not sufficient to simply mention or discuss an issue at a hearing. The rule is that a ‘trial judge cannot be put in error on a matter which was never presented to him for decision.’” City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (quoting Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So. 2d 1227, 1228 (Miss. 1988)). Accordingly, the Moores waived any argument that the chancellor should have applied the statutory cap.

¶11. Procedural bar notwithstanding, the Moores also failed to present evidence sufficient to require the chancellor to apply the cap. The only evidence that the Moores introduced of their net worth was a Uniform Chancery Court Rule 8.05 financial statement that they apparently signed on the morning of the hearing. The Moores’ 8.05 statement estimated the value of their home and land as $85,000 with a $22,000 mortgage balance; claimed household goods, furniture, and clothing worth $400; disclosed checking accounts with a combined balance of $325 or less; and listed two vehicles—one worth $5,600 or less with a $5,600 loan, and the other worth $1,500 with an $1,800 loan. The Moores gave a total value of their assets of $0, although the assets listed totaled $63,425.

The court went on to describe: Carolyn Moore’s evasive answers to questions about $17,000 cash on hand and her admission that their 8.05 was inaccurate; the evasive testimony of her husband about false and misleading bankruptcy filings; their failure to offer tax returns or a copy of a loan application they had submitted to a local blank shortly before trial; and the Moores’ smirking and mocking demeanor at trial. The COA concluded:

¶15. The chancellor did not err by reaffirming her $10,000 punitive award. “[P]roof of net worth is not required to award punitive damages. . . . [F]or a defendant to mitigate potential punitive damages, it is his responsibility to present proof of his net worth and financial condition.” Woodkrest Custom Homes Inc. v. Cooper, 108 So. 3d 460, 469 (¶¶41-42) (Miss. Ct. App. 2013) (citing C&C Trucking Co. v. Smith, 612 So. 2d 1092, 1102, 1105 (Miss. 1992)); accord Coleman & Coleman Enters., 106 So. 3d at 320 (¶33). Furthermore, the “evidence must be sufficient to enable the trial court to determine the defendant’s current net worth, according to generally accepted accounting principles.” In re Miss. Medicaid Pharm. Average Wholesale Price Litig. (“AWP Litig.”), 190 So. 3d 829, 846 (¶40) (Miss. 2015) (opinion of Chandler, J., joined by Kitchens and King, JJ., affirming). The Moores failed to meet their burden. They presented only one self-serving and admittedly inaccurate document of their own creation. Clearly, they did not present “evidence . . . sufficient to enable the [chancellor] to determine [their] current net worth, according to generally accepted accounting principles.” Id.

Not much more needs to be said. If you want to preserve a point for appeal, it must have been presented to the chancellor in trial or pre-trial in a form suitable for the judge to rule on it, or you have waived it. And the burden is on you to prove net worth so as to apply the punitive damages cap.

 

Waiving Discovery Problems

February 28, 2017 § Leave a comment

It happens from time to time, especially in cases that seem to have dragged around for ‘way too long, that the parties appear on the trial date assigned and one attorney launches into a tale of woe about how the other side never answered their interrogatories and requests for production, and now we need a continuance to get those answers or records, or whatever. My solution is below, but what in the world is one supposed to do when confronted by such a woeful situation?

That was the question before the chancellor In Bruenderman v. Bruenderman, a COA case decided January 10, 2017.

In that case, Anna Bruenderman was awarded custody of the parties’ minor child. Ty Bruenderman appealed, arguing that, if only he had been able to get Anna’s medical records into evidence, he would have prevailed, and it was error for the trial judge not to have ordered their production.

The COA affirmed. Judge Greenlee wrote for the court:

¶14. Ty asserts he should have been granted access to Anna’s psychiatric records because they are not privileged under Mississippi Rule of Evidence 503.

¶15. Rule 503 states that there is a privilege between patient and psychotherapist; however, Rule 503(d)(4) states that the privilege does not apply to communications—including records—regarding a party’s physical, mental, or emotional health or drug or alcohol condition when relevant to child custody, visitation, adoption, or termination of parental rights. The comments to the rule state that some factors the court should consider when evaluating such evidence under Rule 503 include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant. M.R.E. 503 cmt.

¶16. Here, Ty subpoenaed Anna’s psychiatrist for a deposition one week prior to trial and did not request a continuance to allow him time to attempt to obtain those records. Though the chancery court ruled that Ty could pursue Anna’s records, he did not, nor did Ty ever move to compel the production of those records. It is well established that the burden is on the movant to request a continuance to pursue discovery matters, and failure to do so constitutes waiver. Ford Motor Co. v. Tennin, 960 So. 2d 379, 394-95 (¶54) (Miss. 2007); see also generally URCCC 4.04; M.R.C.P. 37.

[Note: the reference to URCCC is to the circuit and county court rules. The applicable Uniform Chancery Court Rule (UCCR) is 1.10]

¶17. The chancellor noted that there was no testimony of any major mental or physical problems of either party nor any evidence showing that discovery of any of Anna’s psychiatric records would be relevant to the chancery court’s custody analysis. The chancellor found that, based on what was before him, Anna’s counseling had more to do with the divorce than any underlying issue affecting her ability to properly care for her and Ty’s child. Thus, we find this issue is without merit.

So, the deal is that, yes, you can obtain the records under MRE 503, but unless someone voluntarily hands them to you, which is rare in this HIPAA era, you will have to bring the matter before the judge and show: the records’ recency and relevance; that there is substantive independent evidence of the condition; unavailability of this evidence through another source; court-ordered evaluations will not do the job; and communications between doctor and patient are likely to be relevant in the circumstances. AND you must do all that timely, or you have waived your right to complain about it.

In other words, as with all things discovery, you must timely file to compel, and timely follow up if necessary, or you will have waived the issue.

There are seldom last-minute motions to continue for discovery problems in my court because you can not get a date for trial on the merits unless and until you certify in blood that all discovery issues have been resolved, all discovery is completed, and the matter is ready for trial (Okay, I’m exaggerating about the blood part, but not by much).

The chancellor mus be fair, but that means fair to both sides. When you show up unprepared to try your case, expecting that the judge will congenially grant your request for a continuance, you are taking a big chance. If the motion is even in the slightest unfair to the other side, you will be overruled and told to tee it up.

The Cost of Making a Bad Impression

February 27, 2017 § 2 Comments

Kenneth and Carolyn Moore were engaged for years in a boundary dispute with Roy and Donna McDonald and Ruth Belton (collectively the McDonalds). In 2010, the COA unanimously affirmed a chancellor’s ruling establishing the boundary line between them in Moore v. McDonald, 47 So.3d 1186 (Miss. App. 2010). The trial court’s judgment enjoined the Moores from disturbing the other parties’ peaceful enjoyment of their property.

The Moores apparently did not take the court rulings well. In 2013, they:

  • used a tractor and auger to install fence posts in the McDonalds’ driveway, rendering it impassable, and forcing them to install a new gate to access their land via a different route;
  • tore down the McDonalds’ fence;
  • uprooted or cut down numerous large crepe myrtle trees on the McDonalds’ property;
  • littered the mcDonalds’ property with debris; and
  • threatened, intimidated, and bullied Donna.

The McDonalds filed a contempt action. Following a hearing, the chancellor found the Moores in contempt and awarded compensatory damages, attorney’s fees and expenses, and punitive damages in the amount of $10,000.

The COA affirmed in Moore v. McDonald, et al., decided February 7, 2017. I posted about this case here previously.

What I found interesting was the way that the Moores behaved at trial, and the record of their other conduct, that most assuredly had an adverse impact on the judge’s view of them.

When the issue of their net worth was before the court, it became clear that the Moores had failed to disclose some $17,000 in cash on hand in their 8.05 financial statement. Mrs. Moore became evasive about it to the extent that even the judge became involved (at ¶12):

Q. Where is the money, Ms. Moore?

A. Well, I’ve got the money. Don’t worry about that.

THE COURT: Well, you do have to tell — I’m worried about that.
Where is the $17,000?

MS. MOORE: My daughter has got it if you want to know the
truth about it.

Q. Do you not have any control about how that money is spent?

A. Well, it’s not spent yet so —

Q. Okay. But you didn’t list that on your 8.05, did you?

A. No, I did not list it.

Q. So, in fact, it’s not correct that this financial declaration reflects
everything that you have got?

A. Well I guess not.

When questioned about a bankruptcy filing that had derailed the case for months and forced the McDonalds to incur more attorney’s fees, Mr. Moore either refused to answer or claimed he had forgotten about omissions and inaccurate valuations.

The chancellor recorded her observations of the Moores’ demeanor and credibility, and it does not paint a pretty picture (at ¶14):

“The Court has reviewed the financial statement of the Moores, . . . [a]nd finds that it is by their own admission inaccurate. $17,000 that was borrowed and placed with their daughter is not included on the financial statement, and that really puts the whole financial statement into question, in addition to the whole line of questioning . . . of Mr. Moore and his dishonesty with the Bankruptcy Court.

The Court has no idea what the value of their property is. I don’t believe that the value is what they say it is. I don’t believe them period. I wish the Appellate Court — because I’m confident that this will be appealed — could sit in this chair and see the snickering periodically of the Moores, both. I remember making a note of that in the initial trial, as well as I have just noted for myself smug looks or at one point, I saw them — Mr. and Ms. Moore – laughing between the two of them while the Court was going on.”

If you think that kind of bad behavior escapes the attention of the chancellor, or that it will have no real impact, you need to think again. It does, and it can have a disastrous impact, as it did in this case.

In a case in my court one of the key witnesses was the ex-husband of one of the parties. His bias against her was emphatic and unmistakable. While he took his oath to testify, he glared at her hatefully. He referred to her by using her several former married surnames (e.g., Mrs. Smith-Jones-Johnson-Davis, etc.) until I cautioned him not to continue doing so. His tone about her was sarcastic and included cutting remarks about her. Standing on its own, I found his testimony incredible, but also it was contradicted in material parts by the credible testimony of one of the woman’s children. The ex-husband’s demeanor played a large role in my decision to ignore his testimony entirely.

This is a major reason why you should spend some quality time with your parties and key witnesses in advance of trial. You need to impress on them that the chancellor is judge and jury. The chancellor has immense power over the case. Chancellors are like everyone else when it comes to assessing someone’s credibility. Sarcasm, evasiveness, argumentativeness, bias; all will undercut your witness’s credibility, possibly fatally.

Squatter’s Rights = No Rights

February 9, 2017 § Leave a comment

In February, 2009, Acey Huey deeded property he owned in a subdivision to his daughter, Fillisa.

On August 7, 2009, Acey signed off on a document entitled, “Repairing and Renting Agreement.” Acey and his brother Tom were named in the document as “Landlords,” and Tom’s daughter, Tommie, was denominated as “Tenant,” of the same property that had been conveyed to Fillisa. The agreement, which was prepared by Tommie’s godmother, provided in part: Tommie would pay rent of $150 per month and repair the property at her sole expense; the Landlords could not raise her rent or evict her without cause; if forced to leave for any reason she would be reimbursed for the labor and material she expended on the property, and for moving expenses and “pain and suffering.”

Filisa did not become aware of the agreement until 2012. In June of that year, she sent Tommie notice to pay rent or vacate, demanding $400 a month in rent, plus a $400 security deposit.

On July 25, 2012, Filisa conveyed the property to LeMorris Strong.

On July 27, 2012, the 2009 “Repairing and Renting Agreement” was filed in the county’s lis pendens records, attached to a “Notice of Subordination, Attornment and Non-Disturbance Agreement.”

On August 14, 2012 Strong recorded his deed from Filisa.

In November, 2012, Strong made written demand for Tommie to cancel the lis pendens notice, including a form to do so, as well as a copy of Mississippi’s Litigation Accountability Act (LAA), MCA 11-55-5.

In 2013, after Tommie had vacated the property, Strong filed suit to remove clouds from and quiet title to the property. Tommie counterclaimed. The chancellor granted Strong the relief he requested, and dismissed Tommie’s counterclaim. She also awarded Strong $3,917.14 in attorney’s fees and costs, ruling that the filing of the lis pendens notice and refusal to withdraw it constituted a violation of the LAA.

In Huey v. Strong, decided December 13, 2016, the COA affirmed with a unanimous opinion by Judge Fair, James not participating.

You can read the opinion for yourself. The point I want to make here is that you need to stop and think before you leap. I don’t know who filed that lis pendens notice for Tommie, but I hope it was the godmother who prepared the original agreement, and not an attorney. When you file a lis pendens notice you may be slandering title unless what you have filed is true, accurate, and has a basis in law. Tommie had a chance to withdraw it but did not, which ended up costing her nearly $4,000 she does not have, judging from the recitation of facts in this case. Here the COA holds that filing a false lis pendens notice can be a violation of the LAA. Damages were relatively small in this case, but they could have been huge.

Years ago, as a young lawyer (and before there was an LAA), a breathless client demanded that I file a mechanic’s lien notice against a subdivision developer only to learn soon after that the client had misrepresented the facts to me, and wanted it done as a vendetta because the developer had elected to begin using another contractor. I notified the client that I was withdrawing the lien and he could file one or anything else in his own right, but that I was not going to participate. My bad for leaping before looking and demanding some documentation or proof of the claim. Had that lien notice botched a sale, I might have been on the hook with my client for damages.

When You Are An Imminent Peril to Your Client

January 25, 2017 § 1 Comment

Earlier this week I saw a piece on a news show about the increasingly rampant practice of thieves stealing tax refunds by filing false tax returns.

In one case, a woman learned that the outlaws had filed a tax return in her name claiming thousands of dollars in fake deductions that resulted in a refund — to them and not her — of $26,000. The refund was directed to a blank (prepaid) credit card where it can not be traced. Of course, the victim had to go through much travail to undo all the damage.

In another case, a man’s tax return with all of his dependency exemptions was hijacked for $5,000.

A tax expert came on screen and said that all a thief requires is the taxpayer’s Social Security Number (SSN), and the number of each co-filer and dependent.

Okay. Let that sink in. All that is required is the SSN’s.

Think about how many documents you have in your possession that are full of your clients’ SSN’s. Every tax return has the taxpayer’s SSN on every single page — sometimes in multiple places. Loan applications have them. Social Security earnings reports and other communications have them.

When you file an 8.05 financial statement and do not redact those SSN’s, you are sending your client’s personal information unprotected out into the world. When you produce unredacted records in discovery, you are violating your clients’ confidences. When you introduce information into evidence that includes SSN’s, you are exposing your clients to fraud.

This is something I have discussed here before. It’s serious, and it has serious implications for you. It won’t be long before PI lawyers discover a fertile new field for liability: lawyers who violate their clients’ financial confidentiality and integrity by not observing either the MEC confidentiality rules or the simple, common-sense precaution of redaction.

It seems like every week I have to caution a lawyer to redact confidential information from documents being introduced into evidence. In one case, we had to take an hour-long recess to allow 10 years of tax returns to be redacted. That should have been done long before the trial date.

The MEC rules make it clear that, if confidential information is filed, it is considered that the client has waived confidentiality. So when you file unredacted information, you have waived confidentiality for your client. Did you have authority to do that? Haven’t you committed an ethical violation when you did it without your client’s express permission?

When Less is Not Better

January 24, 2017 § 1 Comment

You know those annoying R81 linking continuance orders? The ones that you have to have entered on the return day and every successive continuance day to preserve your process? (R81(d)(5)).

This is what many of them look like to me:

The hearing on this matter is continued to the 8th day of February, 2017, at 9:00, a.m.

I think it should say in addition that the defendant (respondent) was called three times at the designated time, and he did not appear. Why? Because he could come up later and claim he was there all along and no one called out to let him know his case was up to be heard. The only record of what happened is the court’s order (unless you are in one of those rare districts where the docket call is on the record).

What about determination of heirship judgments? If you need to continue, and you simply recite that the matter is continued, a person claiming heirship can later pop up and claim that he or she was there and no one called him into the courtroom. Oops. No record to contradict it.

Often in chancery the only record you will have of what transpired is the order or judgment you present to the court. You should want it to be airtight, so you should include all the fact-finding and procedural recitations that the proceedings support. For instance:

  • In an uncontested divorce with a custody claim. Put on proof of Albright factors and address them in your judgment.
  • In an uncontested divorce with some property and alimony claims, put on proof of Ferguson and Armstrong factors, and add findings to your judgment.
  • The proof you present of those factors does not have to be elaborate. It just needs to be enough to justify the court’s signing off on the judgment you present.
  • In a case where the defendant appeared on a previous date or two and agreed to continuance(s), recite that history in your order or judgment.
  • If you published process, recite when, where, and how often published, and that no responsive pleading or other response was made.

The more detail you add, the more successful you will be later when the other party wakes up, realizes he has missed the train, and gets a lawyer to try to rescue him by filing a R59 or 60 motion. Just remember that whatever you recite in your order or judgment has to reflect what really transpired. You won’t get a chancellor to sign off on Albright findings when you never asked your witness the first question about them.

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